RIGHTS
Wheelchair
LIFE

I happen to be a lawyer, but it is important for you to understand that I cannot give, and I am not giving legal advice anywhere on this website. See the Disclaimers and the Legal sections at the bottom of these pages, setting forth the Terms of Usage. These pages are for informational purposes only. You should not rely on anything published here without first obtaining your own legal counsel, and discussing the facts of your particular situation with a qualified attorney at law. This website is not intend to, and does not create an attorney-client relationship nor privilege, nor does it create a fiduciary relationship or obligation. If you do not agree to these terms, your sole option and recourse is to immediately discontinue use of this site. With that little legal protection thing out of the way, please feel free to read on.

The concept of "rights" is an interesting one. Oftentimes we hear people proclaim that they have certain "rights." It may be something like, "I have a right to be mad" (which I've never understood), or it may be, "I have a right to my opinion." When we talk about "rights," lots of people confuse what they believe they are entitled to, as being "rights," something they are guaranteed by authority. Our Declaration of Independence states that our founding fathers believed that the rights to life, liberty, and pursuit of happiness are God-given, and inalienable (something that cannot be taken away). But "rights," as we speak of things which can be enforced, are a function of organized society. That is, we can say we have certain rights all we want, but it doesn't really mean anything unless there is some means of enforcement, whether by oneself, another, or through the power of a government. The term "rights," as used in the context of government, simply means the freedom to have or do certain things, or not have or do certain things – as protected by the enforcement mechanisms of society (in the United States, the official enforcement mechanisms are comprised of law enforcement and the courts).

This background on "rights" is provided only so that people don't get hung up on, and waste their time, money, and energy (both physical and emotional energy) on chasing "rights" that don't exist or are not enforceable. For instance, a common misconception is that people believe they have a right to "harassment"-free employment. In reality, however, our laws are basically set up to provide recourse if one is harassed (or otherwise discriminated against) because of that person's status as a member of a protected class. For instance, it is not unlawful to discriminate against someone (or even harass them) because they are ugly, or mean, or tall, or anti-social. It is, however, unlawful if the discriminatory motivation is that person's race, religion, national origin, gender, age (if over 39), or disability, to name a few. The question becomes, what is the true motivation? Plaintiffs and defendants fight all the time over whether the motivation for different treatment was based on unlawful motive.

That being said, there are a number of disability-related rights enumerated by our federal and local governments. This page will attempt to provide a brief overview of some of them. What I'd like to accomplish here is to provide a framework for people in wheelchairs to understand a little better their disability-related rights, and to better navigate through life, balancing legal rights with practical considerations, weighing the pros and cons of various options.

Probably the most well-known, and definitely the most comprehensive, disability-related set of rights in America is set forth in The Americans with Disabilities Act (ADA). I get calls all the time from people who believe they have certain rights under the ADA, that are not really enumerated in the Act (or the statutes and regulations codifying it). I get lots of similar calls for other laws too. In its most general terms, the ADA requires reasonable accommodation for people with disabilities in certain employment, transportation, communication, and facilities. It does not attempt to provide for preferential status, only equal status. There has been a great deal of debate and case law over what qualifies as a "disability" (thereby entitling someone to protection under the Act).

There are numerous federal regulations that attempt to state more specifically just what does, and what does not, qualify as a "disability." As you might imagine, there have been many disputes, lawsuits, and appeals over the meaning of those regulations, and their scope. We have a vast body of case law (the precedent, or "authority" we rely on for legal determinations in this country) interpreting the Act, its statutes, and its regulations. This vast body of law also includes disputes over what exactly is "reasonable" accommodation.

Everyone should remember that their analysis of a situation is colored by their station in life, and while perception is reality for the person perceiving, others may have a substantially different perception. If people could remember this when deciding how to handle a dispute, they could save a great deal of stress, angst, emotional (sometimes physical) turbulence, and money.

It is human nature that our opinions, beliefs, and decisions are shaped by our perspectives. By that I mean, one person's definition of "reasonable accommodation" is likely to be different than another person's definition (sometimes vastly so). Generally, it depends on whether they are providing the accommodation, or receiving it. In other words, we are more likely to get worked up if it is our "ox that is being gored."

My point is, the ADA and other disability-related laws can be effective tools for enforcing our rights, but we should make informed decisions about just how much to press our rights, if at all. We should do this by weighing the potential result against the likely costs. Sometimes rights truly need to be asserted through the courts. But, on the other hand, it doesn't make much sense to become embroiled in a dispute or legal battle if the same or better result can be achieved through less adversarial means. In other words, It doesn't make sense to try to prove one's self right, just for the sake of being right. It can get very expensive, and it is always possible that a party (and/or his or her lawyers) may be wrong. Talk to a capable lawyer, experienced in civil rights law. Carefully determine the pros and cons of the particular situation, and assess the risks and rewards. Try to take personal emotion out of the equation as much as possible. Considering the above, the following is an overview of some civil rights laws intended to protect disabled folks.

The United States Equal Employment Opportunity Commission (EEOC) website states:

Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA's nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules.

An individual with a disability is a person who:

Has a physical or mental impairment that substantially limits one or more major life activities;
Has a record of such an impairment; or
Is regarded as having such an impairment.
A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:

Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
Job restructuring, modifying work schedules, reassignment to a vacant position;
Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.
An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.

An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids.

Title I of the ADA also covers:

Medical Examinations and Inquiries
Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer's business needs.
Drug and Alcohol Abuse
Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA's restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.

The ADA website states:

[T]itle II of the Americans with Disabilities Act ... prohibits discrimination on the basis of disability by public entities. Subtitle A protects qualified individuals with disabilities from discrimination on the basis of disability in the services, programs, or activities of all State and local governments. It extends the prohibition of discrimination in federally assisted programs established by section 504 of the Rehabilitation Act of 1973 to all activities of State and local governments, including those that do not receive Federal financial assistance, and incorporates specific prohibitions of discrimination on the basis of disability from titles I, III, and V of the Americans with Disabilities Act.

The term "qualified individual with a disability" means:
an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00012131----000-.html

The United States Department of Transportation, Federal Transit Administration (FTA) website states:

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination and ensures equal opportunity and access for persons with disabilities. The Federal Transit Administration works to ensure nondiscriminatory transportation in support of our mission to enhance the social and economic quality of life for all Americans. The FTA Office of Civil Rights is responsible for civil rights compliance and monitoring to ensure non-discriminatory provision of transit services.

The United States Architecture and Transportation and Barriers Compliance Board (Access Board) website states:

The Americans with Disabilities Act (ADA) establishes design requirements for various types of transportation vehicles. These requirements are known as the ADA Accessibility Guidelines for Transportation Vehicles (Vehicle Guidelines). These guidelines provide criteria for new and re-manufactured buses and vans, rail vehicles, and other modes of public transportation. The Access Board develops the requirements as "guidelines" to serve as a basis for "standards" enforced by the Department of Transportation (DOT). Regulations issued by DOT (49 CFR Parts 27, 37, and 38) cover access to transportation under the ADA. These regulations indicate which vehicles are subject to the guideline-based standards. The guidelines cover buses, vans, rail vehicles, and other types of public transportation.  The requirements for each vehicle type are explained in a series of technical assistance documents (available on the website).

Title III of the ADA, section 302, 42 U.S.C. §12182, provides generally that “[n]o
individual shall be discriminated against on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or accommodations
of any place of public accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.” In addition, this section provides that
discrimination includes “a failure to make reasonable modifications in policies, practices,
or procedures when such modifications are necessary to afford such goods, services,
facilities, privileges, advantages, or accommodations to individuals with disabilities,
unless the entity can demonstrate that making such modification would fundamentally
alter the nature of such goods, services, facilities, privileges, advantages, or
accommodations.” The definition of public accommodation specifically includes the
“professional office of a health care professional” and hospitals. 42 U.S.C. §12181(7)(F).

FMLA
The U. S. Family and Medical Leave Act (FMLA) is also federal legislation, for which there is a vast body of law interpreting its provisions. Basically, the FMLA protects the employment of certain "at-will" employees, working for certain employers, by providing up to 12 weeks of unpaid leave of absence from their job, for various health-related issues, and a return to work without loss of their position or status. The provisions and regulations applying to the FMLA are complex and fairly voluminous. You should seek the advice and counsel of a qualified lawyer when attempting to interpret your FMLA rights. But the general protections of the Act are intended to allow workers to care for themselves or family members in the face of serious health conditions.

The U.S. Department of Labor website once provided this Overview:

Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

for the birth and care of the newborn child of the employee;
for placement with the employee of a son or daughter for adoption or foster care;
to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
to take medical leave when the employee is unable to work because of a serious health condition.
A website with FMLA information can be found here.

The National Defense Authorization Act (NDAA) amends the FMLA
to permit a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

The Air Carrier Access Act (ACAA) prohibits discrimination on the basis of disability in air travel and requires air carriers to accommodate the needs of passengers with disabilities.

Carriers may not refuse transportation to people on the basis of disability. Airlines may exclude anyone from a flight if carrying the person would be inimical to the safety of the flight. If a carrier excludes a handicapped person on safety grounds, the carrier must provide the person a written explanation of the decision.

Airlines may not require advance notice that a person with a disability is traveling. Carriers may require up to 48 hours' advance notice for certain accommodations that require preparation time (e.g., respirator hook-up, transportation of an electric wheelchair on an aircraft with less than 60 seats).

Carriers may not limit the number of handicapped persons on a flight.

Carriers may not require a person with a disability to travel with an attendant, except in certain limited circumstances specified in the rule. If the person with the disability and the carrier disagree about the need for an attendant, the airline can require the attendant, but cannot charge for the transportation of the attendant.

New aircraft (planes ordered after April 5, 1990 or delivered after April 5, 1992) with 30 or more seats must have movable aisle armrests on half the aisle seats in the aircraft.

New widebody (twin-aisle) aircraft must have accessible lavatories. DOT is continuing to seek more data on accessible lavatories for smaller aircraft.

New aircraft with 100 or more seats must have priority space for storing a passenger's folding wheelchair in the cabin.

Aircraft with more than 60 seats and an accessible lavatory must have an on-board wheelchair, regardless of when the aircraft was ordered or delivered. For flights on aircraft with more than 60 seats that do not have an accessible lavatory, carriers must place an on-board wheelchair on the flight if a handicapped passenger gives the airline 48 hours' notice that he or she can use an inaccessible lavatory but needs an on-board wheelchair to reach the lavatory.

Airport facilities owned or operated by carriers must meet the same accessibility standards that apply to Federally-assisted airport operators.

Airlines are required to provide assistance with boarding, deplaning and making connections. (They need not hand-carry a person on board a plane with less than 30 seats whose physical limitations preclude the use of existing lifts, boarding chairs, or other devices. DOT is continuing to seek additional data about lifts for small aircraft.) Assistance within the cabin is also required, but not extensive personal services.

* Disabled passengers' items stored in the cabin must conform to FAA rules on the stowage of carry-on baggage. Assistive devices do not count against any limit on the number of pieces of carry-on baggage. Wheelchairs and other assistive devices have priority for in-cabin storage space over other passengers' items brought on board at the same airport, if the disabled passenger chooses to preboard.

* Wheelchairs and other assistive devices have priority over other items for storage in the baggage compartment. * Carriers must accept battery-powered wheelchairs, including the batteries, packaging the batteries in hazardous materials packages when necessary. The carrier provides the packaging.

* Carriers may not charge for providing accommodations required by the rule, such as hazardous materials packaging for batteries. However, they may charge for optional services such as oxygen.

* Other provisions concerning services and accommodations address treatment of mobility aids and assistive devices, passenger information, accommodations for persons with hearing impairments, security screening, communicable diseases and medical certificates, and service animals.

Administrative Provisions

Training is required for carrier and contractor personnel who deal with the traveling public.

The nation's largest airlines (currently about 20) and their commuter airline affiliates must submit their procedures for complying with the rule to DOT for review.

Carriers must designate "complaints resolution officials" to respond to complaints from passengers and must also respond to written complaints. A DOT enforcement mechanism is also available.

The rule applies to all U.S. air carriers providing commercial air transportation. `Indirect' air carriers (e.g. charter operators) are not covered by certain provisions that concern the direct provision of air transportation services.

Carriers must obtain an assurance of compliance from contractors who provide services to passengers.

This is only a brief summary of the Air Carrier Access Act of 1990. You can also read the Guide to the ACAA here. For the full version of the Air Carrier Access Act visit here.

There are numerous Federal Acts affecting Disability Rights. The legislation above, and other Acts enumerated by the Disability Rights Section of the U.S. Department of Justice Civil Rights Division are:

Americans with Disabilities Act

Telecommunications Act

Fair Housing Act

Air Carrier Access Act

Voting Accessibility for the Elderly and Handicapped Act

National Voter Registration Act

Civil Rights of Institutionalized Persons Act

Individuals with Disabilities Education Act

Rehabilitation Act

Architectural Barriers Act

The U.S. Department of Justice
Civil Rights Division, Disability Rights Section guide can be found here.

On June 19, 2008, U.S. Representative Edward Markey introduced House of Representatives Bill 6320: The Twenty-first Century Communications and Video Accessibility Act of 2008 (a bill "To ensure that individuals with disabilities have access to emerging Internet Protocol-based communication and video programming technologies in the 21st Century") was introduced in the U.S. Congress.

Summary of the "21st Century Communications and Video Accessibility Act" found on the Coalition of Organizations for Accessible Technology website:

Telecommunications technologies have a proven ability to empower individuals with the necessary tools of the information age. These technological tools can animate the personal use of communications for work or enjoyment, but also impact health care delivery, educational opportunities, the prospects for employment, and job creation. The goal of the legislation is to establish new safeguards for disability access to ensure that people with disabilities are not left behind as technology changes and the United States migrates to the next generation of Internet-based and digital communication technologies.

This bill is in the first step in the legislative process. Introduced bills go first to committees that deliberate, investigate, and revise them before they go to general debate. The majority of bills never make it out of committee. Keep in mind that sometimes the text of one bill is incorporated into another bill, and in those cases the original bill would seem to be abandoned. You can track the status of this proposed legislation here.

Various state laws, some mirroring federal law, also provide protection of rights for people in wheelchairs. Again, talk with a good, reputable lawyer to discover your rights under the various laws.
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